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Constitutional Performance Assessment of the 1987 Philippine Constitution Summary of Findings

Constitutional Performance Assessment of the 1987 Philippine ConstitutionSummary of Findings

Authors: Maria Ela L. Atienza, Aries A. Arugay, Francis Joseph A. Dee, Jean Encinas-Franco, Jan Robert R. Go, Rogelio Alicor L. Panao and Alinia Jesam D. Jimenez

Co-editors: Maria Ela L. Atienza and Amanda Cats-Baril

© 2020 International Institute for Democracy and Electoral Assistance and University of the Philippines Center for Integrative and Development Studies

This report is independent of specific national or political interests. Views expressed in this paper do not necessarily represent the views of International IDEA and the University of the Philippines Center for Integrative and Development Studies, or their respective Board or Council members.

International IDEA Strömsborg SE–103 34 Stockholm Sweden Telephone: +46 8 698 37 00 Email: [email protected] Website:

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ISBN: 978-91-7671-299-3

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Preface ............................................................................................................................................ 5

Foreword ......................................................................................................................................... 8

1. Introduction ............................................................................................................................. 10

2. Constitutional performance methodology as adapted and applied to the Philippines .. 12

3. Constitutional design areas assessed .................................................................................. 22

4. Key findings of the constitutional performance assessment ............................................. 26

Performance of electoral processes and institutions .................................................................... 26Assessment of legislative–executive relations .............................................................................. 29The performance of the judiciary .............................................................................................. 31The performance of accountability institutions ......................................................................... 35The performance of local governments ...................................................................................... 37Assessment of rights .................................................................................................................. 41The performance of the security sector ...................................................................................... 44Assessment of the economy and labour ..................................................................................... 45Assessment of citizenship and equality ....................................................................................... 46

5. Conclusions ............................................................................................................................. 49

References ................................................................................................................................... 51

About the authors ....................................................................................................................... 55

About the partners ...................................................................................................................... 56

About International IDEA ........................................................................................................ 56About Center for Integrative and Development Studies ............................................................ 57

Contents

International IDEA | University of the Philippines, Center for Integrative and Development Studies 5

Preface

Preface

Constitutions have played a central role in the political life of the Philippines since it became Asia’s first republic in 1899. In addition to organizing the institutions of government, the fundamental charters of the Philippines have provided a terrain for political contestation and for citizen aspiration. This has been especially true of the 1987 Constitution, which consolidated the ‘People Power’ uprising after the overthrow of strongman Ferdinand Marcos. It is a profoundly optimistic document, born at a significant moment in the country’s history, when there was a great deal of hope.

Now is an excellent time to review how the 1987 Constitution has performed, and to ask what reforms will be needed to keep the document relevant for the immediate future. Most constitutions do not last, and the 1987 Constitution is now older than those of most other countries, whose median age is only 27 at this writing. Surviving three decades is therefore a remarkable feat for any fundamental charter, and this is perhaps especially true in a country facing the challenges that the Philippines has. Coup attempts, economic stagnation and secessionist violence are the type of things that have led to the replacement of many other constitutions, but they have not felled the 1987 document. Furthermore, the Constitution has played a major role in the country’s political life, as a series of colourful leaders, impeachment attempts and proposals to change the constitution have kept the document in the public eye. It has been a major force in public discourse and elite contestation.

In light of its endurance, it is important to understand how well the Constitution is working, and how it might be improved. This performance assessment takes on that task with rigor and flair. It is a complex project, one that requires considerable nuance in the gathering and weighing of evidence. It is fortunate that International IDEA was able to partner with the University of the Philippines under the remarkable leadership of Maria Ela L. Atienza to conduct the assessment.

How might we know if a constitution is working or not? To make a considered judgement first requires setting out criteria against which to judge actual performance. In doing so, this assessment distinguishes between ‘internal’ goals, which are set out in the document itself, and ‘external’ criteria, which might be applied in principle to any constitution in any country. Examples of the latter might be the levels of democracy, development and human rights protection in a country. Of course, to some degree external and internal criteria may overlap, particularly in the case of a ‘democratizing’ constitution such as that of 1987. The Preamble of the Constitution speaks in lofty terms about democracy, the rule of law, and the goal of building a just and humane society, which might also be external criteria one could use to evaluate any constitutional order. But as the reader will see, the distinction between internal and external criteria is still helpful, as the question of whether the Constitution has achieved the explicit goals articulated by its drafters is a minimum question to answer.

6 International IDEA | University of the Philippines, Center for Integrative and Development Studies

Constitutional Performance Assessment of the 1987 Philippine Constitution

The assessment does not stop there. Constitutions are operating manuals for government, whose rules and provisions help to define and limit the agencies of government. But in an important sense they are also blueprints: they set out the plans and aspirations for the society, and provide goals to work towards. Constitutions do not only describe what exists, but also lay out what the drafters want the country to become. They motivate political action and provide direction to a society. Noble ambitions such as political equality, peace and human flourishing take time to realize, and we would never expect that such goals could be achieved overnight. But the mere fact that we have not yet arrived at the promised land does not mean that we cannot evaluate our progress in that direction.

Doing so requires a rigorous methodology and that is precisely what this assessment provides. Informed by the local context of the Philippines, it lays out numerous benchmarks and measures through which we can evaluate constitutional performance. While it draws on methods developed by scholars and by International IDEA in other contexts, it is also tailored to the specific context of the Philippines. By laying out quite specific measures to evaluate performance, the assessment provides an empirically informed, evidence-based approach that is deeply rooted in the Philippine experience.

Compliance with any constitution is not simple to ascertain. It is not like a light switch, where one can tell whether it is either on or off fairly easily by whether a room is light or dark. Instead there are shades of grey and numerous intermediate positions. In this regard, the performance assessment distinguishes between ‘thin’ compliance and ‘thick’ compliance. Thin compliance can be observed through fairly straightforward evidence as to whether institutions were set up, appointments made and laws adopted in a timely manner. But it is much more difficult to tell whether there has been thick compliance, in the sense of meeting the substantive goals set out in the constitution.

The problem is not simply that evidence is hard to find. Rather it is a structural feature of constitutions. The values and objectives of any constitution are abstract and may even pull in multiple directions. Indeed, the most basic tension at the heart of constitutionalism is that a constitution must set up a government strong enough to produce collective welfare, but not so strong as to dominate people. The American founding father James Madison, in Federalist Paper 51, noted that in framing a constitution, ‘the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself’. Furthermore, there is no single ‘best practice’ in resolving this problem, or indeed in answering any constitutional design question. Instead, each society will have to articulate its own needs and values and will have to live with the genuine tensions that ensue.

The performance assessment finds that thin compliance has been achieved in many, but not all, areas. Thicker compliance is lacking in many areas, including competitive elections, full economic participation by all citizens, and levels of judicial power. As the reader will learn, the assessment pulls no punches and is at times quite critical; yet it also gives government actors credit where it is due for successful implementation of many of the commands laid out in the 1987 text. Readers may disagree with specific conclusions and proposals in this assessment, but no one will doubt the rich documentation of evidence, carefully weighed. The assessment combines academic rigor and systematic analysis with clear prose and powerful arguments.

This assessment not only evaluates the performance of the Constitution, but develops a series of quite concrete recommendations for fuller realization of the promise of 1987, in terms of deeper implementation and thicker compliance. In this sense the performance assessment is not only retrospective analysis, but itself a kind of blueprint that can be used to advance the promise of 1987, which has only been partly achieved.

At the end of the day, constitutions are pieces of paper. They do not implement themselves. Rather they require intense and sustained action by citizens, organizations, government officials, judges and politicians. Nelson Mandela once said: ‘People come and


Preface

go. Customs, fashions and preferences change. Yet the web of fundamental rights and justice which a nation proclaims must not be broken.’ The web of fundamental rights and justice proclaimed in the 1987 Constitution can only become stronger if people pay close attention to it, repairing the parts that are broken and reinforcing the parts that are working well. With such effort, and perhaps with a bit of luck, the Constitution will endure another several decades and beyond.

Dr Tom Ginsburg Leo Spitz Professor of Law

University of Chicago Law School



Foreword

International IDEA is the only inter-governmental organization in the world that is fully dedicated to supporting and sustaining democracy. The Institute’s approach is to provide tools, knowledge products and expert advisory services that help countries around the world to debate and develop techniques for deepening democracy and overcoming challenges. International IDEA works non-prescriptively, helping partners define the right questions to ask instead of providing answers to these questions. Central to its work on democracy is International IDEA’s focus on constitution-building—a focus which has taken on new relevance across Asia and the Pacific as increasing numbers of countries in the region consider constitutional change to address challenges with multiculturalism, conflict and economic growth.

In the context of the Philippines, International IDEA has closely followed the debates around constitutional reform that have accompanied Duterte’s presidency. After campaigning on a promise of constitutional change, known as ‘ChaCha’ in the Philippines, President Duterte initiated processes and debates on federalism and electoral reform, among other issues, keeping ChaCha on the agend.a These discussions centred around the perceived failure of the 1987 Constitution and the system it established to address centralized power structures and economic development in the Philippines, as well as the conflict in Mindanao. Options for addressing these challenges include further evolution of autonomy arrangements through the Bangsamoro Organic Law or other legislation, as well as potential amendments to the 1987 Constitution. Considered amendments focus on developing a federal system in the Philippines, moving from a presidential to a semi-presidential system of government, and reforming the electoral system to strengthen representation and the party system.

The first publication resulting from this research project, The Chronology of the 1987 Philippine Constitution (Atienza 2019), details the context under which the 1987 Constitution came to be and its distinct spirit and purpose. The Constitution enshrines the concepts of representative democracy and separation of powers; establishes independent constitutional commissions; promotes local autonomy; and restores legislative and judicial powers vis-à-vis the presidency. It aspires to prevent a repeat of the tyranny that the Philippines had lived under in the past by establishing presidential term limits, a bicameral Congress and Congressional approval over declarations of martial law.

Despite positive aspects, recent developments seem to suggest that the 1987 Constitution has not fully addressed the aspirations of Filipinos. The Philippines continues to suffer from unequal development, with most economic and political activity focused in Metro Manila. Service delivery is viewed as unresponsive and unequal. This has given rise to demands from certain sectors for strengthened autonomy and decentralization arrangements, be they federalism or better implementation and reform of the existing Local Government Code


Foreword

passed in 1991, that dovetail with existing autonomy claims emanating from the Mindanao peace process. President Duterte built his political platform and base around addressing these issues—forcing constitutional change onto the political agenda in the Philippines. In this context, International IDEA built on its long-standing partnership with the Center for Integrative and Development Studies at the University of the Philippines to adapt and apply the constitutional performance assessment methodology with the hopes of contributing to more evidence-based public discourse on ChaCha. International IDEA provided its constitutional performance assessment methodology as a framework for examining how a constitution is enduring, by examining various institutions in a country and their adherence to the vision, principles and guidance laid out in the constitution. The University of the Philippines then professionally adapted and designed research tools to rigorously apply the methodology to the Philippine context.

There is a long road ahead for constitutional reform in the Philippines. Regardless of the path that the Philippines chooses, it is important to generate knowledge and understanding on the 1987 Constitution’s performance to date. Many people are concerned about the scope of the change contemplated in the Philippines—for example, if the constitution is opened up, will there be backtracking on any democratic developments? With federalism, are there increased opportunities for capture of economic and political systems in the new subnational entities?

The findings of this constitution performance assessment will hopefully allow for the design of an evidence-based constitution-building process with a clear scope, where different options for change can be considered on the basis of measures of performance and research indicating which aspects of the constitution are working for the Philippines and which are not. The research consolidated in this Summary of Findings may also help to counteract rumours and manage expectations for constitutional change by grounding public perceptions and debates in the context of the current constitutional landscape in the Philippines. Altogether, this will assist stakeholders to examine constitutional performance, and define problems with the current constitution before suggesting solutions, be they constitutional reform or not.

Leena Rikkilä Tamang Director, Asia and the Pacific Programme

International IDEA



1. Introduction

This performance assessment was commissioned by the International Institute for Democracy and Electoral Assistance (International IDEA) to assess the performance of the Philippine Constitution over the last 32 years and examine the Constitution’s internal requirements for technical implementation, as well as its aspirational purposes and success in achieving them. The 1987 Constitution emerged after the 1986 Epifanio de los Santos Avenue (EDSA) People Power Uprising that removed Ferdinand Marcos and sought to establish a post-authoritarian regime. Succeeding national administrations have attempted to revise or amend the Constitution, although there have been no successful attempts to date. However, the election of Rodrigo Duterte to the presidency in 2016 opened a whole new discussion about whether or not it is time for the Philippines to shift to a federal form of government from its current unitary but devolved form. Debates about whether to revise, repeal or replace the Constitution continue.

This assessment supports an evidence-based constitution-building process with a clear scope, in which different options for change can be considered on the basis of the measures of performance and research indicating which aspects of the Constitution are working for the Philippines and which are not. This process is similar to what Hutchcroft (2019: 13) pursued in studying electoral system redesign, that is, a problem-driven process of political reform that requires ‘identifying the major problems to be addressed and then (and only then) working out what would be the proper solutions to resolving those problems’. This approach is in contrast to the ‘inherently flawed solution-driven process of political reform’; for example, advocating for a shift to a federal system without linking the reform to a problem it could potentially help resolve. Before recommending constitutional amendment, constitutional revision or other reforms or actions, it is important to look at the current Constitution and assess the performance of its goals and provisions. Any shortcomings in the Constitution should be identified first before possible changes are addressed or proposed.

This summary of the findings from extensive background papers on each constitutional design area, prepared by the project team, begins with a brief summary of the International IDEA methodology as applied in the assessment. This is followed by an introduction to the constitutional design areas that the assessment focused on, before presenting the key findings and policy recommendations for each constitutional design area developed on the basis of the assessment.

The first part of the current assessment, Chronology of the 1987 Philippine Constitution (Atienza 2019), has been published by the University of the Philippines Center for Integrative and Development Studies and International IDEA as a public policy monograph. The chronology focuses on the background to and processes of writing the 1987 Philippine Constitution and its contents, as well as a preliminary mapping or assessment of its


1. Introduction

application in terms of the following: (a) elections held; (b) laws enacted by the two Houses of Congress, as mandated by the Constitution and judicial decisions of the Supreme Court interpreting provisions of the Constitution; (c) impeachment cases under the provisions of the Constitution; (d) a timeline of the peace processes pursued from 1987 to the present; and (e) a summary of the approval ratings and surveys of the officials and institutions created under the 1987 Constitution. This chronology was used to identify the internal and external criteria applied in the rest of the assessment, as well as serving as a foundation for the thick and thin compliance analysis.



2. Constitutional performance methodology as adapted and applied to the Philippines

The assessment of the 1987 Philippine Constitution’s performance is based on an adapted application of International IDEA’s constitutional performance assessment methodology. This methodology looks at how a constitution is enduring by examining constitutional design areas (institutions and issue areas), their implementation and how well they are performing in terms of promoting the vision and guidance that underlie the constitution.

The constitutional performance assessment methodology calls for a multi-pronged approach. First, the constitution is reviewed using a set of ‘internal criteria’—identified with reference to the constitution’s self-defined goals, often found in the preamble of the constitution. The internal criteria are then assessed by looking at what the constitutional provisions say about different institutions designed to meet these criteria. Compliance with the internal criteria can often be assessed by looking at whether or not the technical requirements in the constitution have been met, that is, if the constitution calls for the establishment of a legislature, has it been set up? The methodology also calls for assessment of the constitution’s design with reference to a set of ‘external criteria’, which comprise more normative criteria on what a constitution should be and do in accordance with global practice and theory. The external criteria identified for this assessment are (a) democratization; (b) decentralization; (c) social justice, human rights and gender equality; (d) peace and conflict resolution; and (e) economic development. Assessing these criteria usually requires looking at thick performance, meaning a deeper look not only at whether a legislature or other institutions were established but also at how they are functioning in practice. After identification of the internal and external goals, the assessment methodology requires a systematic analysis of different constitutional design areas—including associated processes and provisions—within the constitution to see how well designed these are for achieving the goals. The assessment is divided according to the following constitutional design areas: (a) electoral institutions; (b) legislative–executive relations; (c) judiciary; (d) accountability institutions; (e) local governments; (f) rights; (g) security sector; (h) economy and labour; and (i) citizenship and equality. This multi-pronged approach allows for better identification of design flaws in the constitution, permitting a nuanced analysis of whether shortcomings in constitutional performance are a result of poor substance or poor implementation.

The matrix in Table 1 lays out the internal and external criteria by constitutional design area identified for use in the assessment of the Philippine Constitution.



Table 1. Internal and external criteria used in the assessment of the Philippine Constitution

Constitutional design areas

Internal criteria External criteria and thick compliance assessment questions

Democratization Decentralization Social justice, human rights and gender equality

Peace and conflict resolution

Economic development

Electoral processes and institutions

Regular, competitive and inclusive elections: Are elections held on time?

Are elections perceived as free and fair? Are there means of removing politicians who abuse their position? Is there regular turnover in office? Have term limits been observed, changed or violated? Are elections well organized in a manner to ensure that every citizen can exercise their right to vote? Is there real competition between parties? Do parties run on their manifestos or on identity? Have the rules for peaceful change in government been followed? Have referendums, recalls or other direct democratic polls been held?

Are elections for local government positions held regularly? Is turnout for local elections similar to that for national elections? Have there been drastic changes in the drawing of electoral districts? Are certain regions over-represented or under- represented in the legislature? Do certain areas consistently vote for losing candidates in presidential and vice-presidential elections?

Has change in government occurred beyond elite groups? Do women and minorities have opportunities to run? Are women and minorities represented in national and local offices? Is participation in elections available for all groups in society?

Do elections result in violence? Is intimidation and violence used to win elections? Do rebel and other armed groups respect the legitimacy of elections? Have the electoral milestones of different peace agreements been met?

Are bribes used to win elections? Is there a low barrier to entry in politics? Are rules on party and campaign financing enforced?








Legislative– executive relations

Strong legislature vis- à-vis the executive: Have institutions been set up? Are executive and legislative branches operating effectively? Are relations operating effectively?

Were the discussions/ deliberations transparent? Is there access to decision-making processes? Aside from state officials, which groups/actors were consulted by Congress in its deliberations? Do state institutions maintain the support of the people? What are the enabling and constraining mechanisms? Are the different branches of government able to use their constitutional powers to check the power of other branches? Does any one branch of government dominate decision-making? Are decisions perceived to be in the interests of the nation? Is there capture of democratic institutions by those in power?

To what extent have debates on decentralization shaped the discussions? What were the specific concerns around decentralization? Have there been conflicts between the executive and legislative branches in looking at decentralization and autonomy issues? How have these conflicts been resolved?

Did the discussions on decentralization, autonomy and the peace process involve social justice, human rights and gender equality goals? What factors and specific contexts brought about these discussions?

Have laws relating to peace and conflict resolution been passed? Have there been conflicts between the executive and legislative branches in looking at peace and conflict resolution issues? How have these conflicts been resolved?

Does the practice of checks and balances used by one institution on another reflect an interest in improving the provision of public good? Of improving the economy? Is there corruption among state institutions?








Judiciary Independent judiciary vis-à- vis the executive and the legislature: Are courts formed? Are courts operating? How are judges selected? Is the process in accordance with the Constitution? Have reforms in the Constitution been instituted? Does the judiciary have power to ensure implementation of the Constitution in line with its intent and the rule of law?

Is the judiciary perceived as independent and competent? Are there accountability and transparency mechanisms? Does the judiciary corps fairly reflect the population? Does the judiciary act as an independent arbiter in intra- government disputes? Are courts accessible for all?

Do court decisions and procedures support decentralization and autonomy, particularly in interpreting local autonomy issues?

Are women, minorities and other sectors represented in the judiciary? Do court decisions, policies and programmes promote social justice, human rights and gender equality?

Do court practices and decisions support peace and conflict resolution?

Do courts favour certain sectors in decisions affecting the economy? Do courts facilitate/ hinder economic development and equity? Is there corruption in the judiciary?








Accountability institutions

Independent accountability institutions: Are constitutional offices established to independently and expertly oversee different government functions?

How does the Commission on Elections (COMELEC) fare in its mandate to protect the right to suffrage? To what extent have constitutional bodies such as COMELEC and the Civil Service Commission (CSC) guaranteed equal access to public office? What has been done to ensure unfettered participation by the qualified voting age population? What has been done to ensure that property and pedigree do not hamper the right to vote and the right to run for public office? What is the prosecution rate of anticorruption agencies vis-à-vis other prosecutorial bodies? What is the average time taken to prosecute corruption cases? How does this rate compare with those in other countries? How have courts upheld or deviated from the salient provisions of accountability legislations in their pronouncements?

Are constitutional bodies such as the CSC, Commission on Audit (COA) and COMELEC able to operate effectively in autonomous regions? Is the COA able to perform financial audits without constraint in the autonomous regions? Is COMELEC able to hold relatively peaceful elections in the autonomous regions?

Are the COMELEC decisions on party registration and accreditation consistent with the provisions of Republic Act 7941 (the 1995 Party-List System Act)? What has been done to encourage the participation of sector-based and local parties in the electoral arena? What is the prosecution rate and prosecution success for election-related offences? In practice, are public officials barred or punished from holding public office for prior election-related offences?

What is the state of election- related violence in the Philippines? Are perpetrators of election- related violence punished? In general, have elections facilitated peace and development in the countryside?

Have COA audits facilitated sound public fiscal management? Have COA audits been consistent with the Local Government Code’s mandate of fiscal autonomy at the local level? What is the compliance rate to COA audits among government agencies? Has the COA been effective in minimizing corruption in public procurement and government projects?








Local governments

Decentralization and local autonomy: Are local governments formed? Are they operating? Have reforms according to the Constitution been instituted?

Are local government officials selected in a legitimate manner? Are they viewed as responsive and accountable? Are there institutional mechanisms allowing participation of citizens and groups in local governance? Are these followed in practice?

Do local governments have sufficient powers and autonomy? Do local governments exercise devolved functions and powers? Do local governments deliver or facilitate the delivery of public goods and services at the local level? Are central–local tensions resolved? How?

Do local governments promote social justice, human rights and gender equality? Are women, minorities and other sectors sufficiently represented?

Do local governments promote peace and conflict resolution?

Do local governments facilitate/ promote economic development? Is corruption a problem at the local level? How about political retrenchment?

Rights Respect for human rights: What progress has been made on implementation of major rights provisions?

Do people feel free to exercise their constitutional rights? What is the record on political rights? Are rights associated with freedom of assembly, to vote, to run for election and to join associations and political parties protected in law and practice, in accordance with the Constitution?

Do national government institutions tasked with advancing rights pertaining to labour, agrarian and natural resources reform, urban land reform and housing, health, women and indigenous peoples have offices that are accessible to people in each region/province? Do local governments have powers to forward rights pertaining to labour, agrarian and natural resources reform, urban land reform and housing, health, women and indigenous peoples?

Is rights protection seen as equal for all? Does political discourse reflect the interests of the poor and disempowered? What progress has been made towards socio- economic and other rights contained in the Constitution pertaining to labour, agrarian and natural resources reform, urban land reform and housing, health, women and indigenous peoples? Has the government made policy/ laws and/or created institutions to fulfil rights? How has the judiciary interpreted such rights? Are such rights provided to all groups?

Does the government make significant efforts to resolve cases of extrajudicial killings? Are the rights of combatants in encounters between the state and armed groups observed? Have issues of rights raised by different rebel groups been resolved?

Do public services perform efficiently? Is there limited bureaucracy and corruption in health, housing, education and other public sector service industries?








Security sector Supremacy of civilian authority over the military: Are formal institutions established? Have reforms been instituted? Has security improved since the promulgation of the Constitution?

Are there laws governing the security sector and are these compliant with the Constitution? Is civilian authority supreme over the military? What is the public perception of the police, military and other security agencies? Is there fair representation of different groups in the security sector? Is there fair representation in leadership positions in the security sector?

Does the security sector support decentralization and autonomy?

Are women, minorities and other marginalized sectors (e.g. indigenous peoples, LGBT) represented in the security sector? Do security sector policies, programmes and actions promote social justice, human rights and gender equality? Is security provided for communities according to their expectations? Equally?

Is there state monopoly on the use of force? Do groups use politics to resolve conflicts rather than resort to force? What is the role of different security sector agencies in peace and conflict resolution?

Is bribe-taking commonplace among security sector agencies?








Economy Have provisions designed to shape the economy been implemented? Have economic provisions facilitated economic growth and addressed regional inequalities?

Do laws widen and guarantee access to economic opportunities? Have policies allowed for alternative access to markets other than on the basis of wealth? Is there a programme for land redistribution or land reform? What percentage of legislative enactments per Congress are devoted to economic policies? What is the passage rate for these types of legislation? What are the areas of focus (e.g. job creation, taxation, labour policies)? Do laws protect private property? How are these laws upheld in judicial and administrative pronouncements?

Have institutions facilitated the revenue- generating capacity of local government units (LGUs)? Has fiscal autonomy in its current form facilitated economic prosperity among LGUs? Have government transfers to LGUs aided countryside growth and development? Has local income- generating capacity improved under the current fiscal set-up?

Are laws providing economic opportunities exclusive to citizens? Are aliens allowed to own property, pursue a livelihood or practice a profession? Do policies allow for equitable access to economic opportunities for women, the elderly, single parents and persons with disabilities? Is there a working social security programme in practice? How do individual workers and unions fare in labour cases heard before courts and administrative bodies? Do institutions protect the right of workers to organize and bargain for fair wages and the protection of their rights?

Are there programmes that enable economic growth and opportunities in the autonomous regions? How do provinces in the Autonomous Region in Muslim Mindanao (ARMM) compare with other provinces in terms of economic prosperity? What is being done to narrow the gap in income and human development between the ARMM provinces and the rest of the country?

Have institutions (e.g. laws) narrowed the gap between income classes and promoted participation by the marginalized? What percentage of legislative enactments per Congress are devoted to economic policies? What is the passage rate for these types of legislation? What are the areas of focus (e.g. job creation, taxation, labour policies)? Do courts uphold the rights of all economic stakeholders (corporations, small enterprises, etc.)? Do laws protect the right to private property? Is such a right upheld in the courts and administrative bodies? Has government policy under the Constitution resulted in increased growth and development? Are barriers to establishing business low? Do business interactions with the government (registrations, licensing, tax payments,








etc.) work efficiently without corruption? What is the average waiting time for the above- mentioned transactions? How do firms perceive the overall business climate and the ease of doing business in the country?

Citizenship/ equality

Equality among citizens: Is the concept of citizenship included in the law/ Constitution? Are there mechanisms for how citizenship is determined? Is there a process of naturalization? Is there a concept of citizenship beyond the technical requirements of the law, i.e. a substantive form of participation?

Are there mechanisms or laws by which different groups are represented in the political arena? How is this done? Are these implemented? Are political parties representative of different groups of people? Is the political leadership sensitive to the concerns forwarded by different groups of people? How are these concerns responded to? Is consent of the people an important concept among political leaders and parties?

Is there an idea of ‘local citizenship’? To what extent are ‘local citizens’ able to affect policy at their level? How are the interests of ‘local citizens’ considered? In areas where there is great diversity, how are these interests addressed? Does everyone benefit from the public goods provided by local government?

Are there guarantees of equal protection of rights among different groups? To what extent have these guarantees been realized? Are there instances of discrimination based on ethnicity, gender, religion or political affiliation? How are these resolved? Do people benefit from public goods produced by the political order?

Does violent conflict occur over the concepts of identity and who belongs to the political community? Are there peace and conflict issues ensuing from the differences among groups, particularly in terms of identity (political, ethnic, gender, etc.)? How did these issues come about? How does the government respond to these issues? Does the government consider one group alone or does it consider all interests in a given situation?

Are citizens able to pursue economic activity without unnecessary or unreasonable difficulties? Does everyone benefit from the economic policies implemented by the government? Are opportunities to develop available to all citizens? To what extent can one achieve economic prosperity at the personal level? Are citizens’ interests considered by politicians and economic managers in developing policies?



The constitutional performance assessment methodology requires an examination of compliance with the Constitution in a thin and thick sense. ‘Thin compliance’ simply refers to whether government branches and institutions responded to their mandate in the Constitution to pass legislation, form policy or perform other specific actions. This is a more factual and quantitative inquiry. On the other hand, assessing ‘thick compliance’ is more complex and requires a qualitative assessment of whether the Constitution has, for example, created a stable system of governance or equality between citizens, deepened democracy and transformed conflict.

The performance assessment was completed with the use of existing survey data, relevant statistics, court decisions, legislative data, election data, interviews and focus group discussions (FGDs) with key stakeholders (e.g. judges, prosecutors, court employees, public and private lawyers, legislative staff, local government officials and staff), a non-random survey of scholars and practitioners from the country’s strategic studies and policy community, and previous assessments and reports. In this way, it uses mixed quantitative and qualitative data.



3. Constitutional design areas assessed

The 1987 Constitution, a product of the 1986 People Power Uprising that toppled the Marcos dictatorship, enshrined the concepts of representative democracy and separation of powers, established independent constitutional commissions, promoted local autonomy, and restored legislative and judicial powers vis-à-vis the presidency (for more information on the history of the 1987 Constitution’s development, see Atienza 2019). This section will look at how constitutional design was carried out to meet these goals, considering the different constitutional design areas identified in the previous section.

The 1986 Constitutional Commission (ConCom), which was tasked with drafting what came to be known as the 1987 Constitution, was convened three months after the EDSA People Power Uprising. Therefore, many of the provisions of the Constitution reflect people’s frustrations about the past and aspirations for the future. The themes of participatory democracy, social justice and human rights can be found throughout the document. Despite the appointive nature of the members of the ConCom and only four months of deliberations, the processes involved numerous hearings around the country, with diverse groups representing different interests expressing their views on various aspects of the Constitution. After drafting, the members of the ConCom travelled around the country to explain the contents of the draft and campaigned for its ratification. It was ratified on 2 February 1987.

Because the ratification of the 1987 Constitution was a major milestone in the transition of the Philippines back to liberal democracy, the first design area tackles the question of whether or not there have been regular, free and fair elections to promote a representative government. This includes analysis of electoral administration, as well as participation in elections as voters and candidates. The Constitution stipulates the qualifications of those who can exercise their right to suffrage. The Constitution also stipulates the qualifications necessary for running for national elective offices (i.e. President, Vice-President, Senator, Member of the House of Representatives). On the other hand, the qualifications needed to run for local elective offices are defined only in the Local Government Code (LGC) of 1991. Disqualifications for nationally and locally elected officials are also stipulated in the Omnibus Election Code and the LGC. Lastly, the 1987 Constitution established the Commission on Elections (COMELEC) as a constitutional commission to provide additional rules and oversight for national and local elections, such as setting the duration of the campaign period and ensuring that bona fide candidates for any public office are free from any form of harassment or discrimination.

The second and third design areas assessed focused on the three branches of government. The 1987 Constitution brought back the doctrine of ‘separation of powers’ and the system of checks and balances in designing legislative–executive relations to limit the possibility of



authoritarian government. The executive and legislative branches each have their own set of powers and functions, but they have shared powers that each can use to check the other branch and prevent excessive uses of power. Broadly, the President and the entire executive branch (including local government units (LGUs) and government-owned and -controlled corporations) are tasked by the 1987 Constitution to implement and enforce the law, whereas the legislative branch is mandated to craft laws. The post-EDSA Constitution established a bicameral legislature comprising the Senate and the House of Representatives. This assessment specifically examines the relationship between these bodies and the executive branch of government.

The third branch of government envisaged in the 1987 Constitution was a strong and independent judiciary, to serve as the guardian of the Constitution and the guarantor of the basic constitutional rights of the people, and to provide horizontal accountability by serving as a stronger check on the executive branch. The 1987 Constitution gave members of courts security of tenure. It also gave the Supreme Court expanded powers of judicial review as a form of political insurance so that it could be a forum to challenge the constitutionality of legislation, to interpret the Constitution and, in general, to enable the judiciary to monitor the executive branch for any abuse. This is a direct response to the judiciary’s experience under the Marcos regime and the regime’s excesses. The Constitution also established the Judicial and Bar Council (JBC), whose principal function is to screen appointees and recommend them to the judiciary to enhance the independence, integrity and legitimacy of the appointment process.

In addition to establishing three branches of government, the 1987 Constitution provided for the creation of independent bodies, which constitute the fourth constitutional design area examined in the assessment. These bodies are:

• The Civil Service Commission (CSC). The CSC serves as the central personnel agency of the government.

• COMELEC. COMELEC is tasked with overseeing and facilitating the holding of elections. The poll body’s mandate is primarily to safeguard the people’s right to suffrage.

• The Commission on Audit (COA). The COA is the watchdog of the government treasury and also serves as the central accounting office of the state.

• The Ombudsman. The Ombudsman is tasked with serving as the ‘protector of the people’ and is expected to act promptly on complaints against public officials. It holds investigative powers, remedial powers, administrative jurisdiction and criminal jurisdiction.

• The Sandiganbayan. This is the Philippines’ anti-graft court and has jurisdiction over civil and criminal cases involving graft and corrupt practices and other such offences committed by public officers and employees in relation to their office.

Collectively, these bodies were charged not only with safeguarding democratic processes and institutions but also with ensuring that government is accountable to the citizens and the Constitution. The independent bodies were explicitly designed to ensure their independence from private interests and to insulate them from political pressure.

After the 1986 People Power Uprising, the new administration renewed the government’s commitment to give enough powers and responsibilities to local governments for them to become partners in development and democratization with the national government. This was after the experience under martial law, in which decision-making was mostly centralized, allies of the administration dominated most local government seats, and local development



was neglected. The 1987 Constitution thereby placed specific emphasis on decentralization and autonomy. It instructed Congress to enact a new LGC, as well as organic acts for autonomous regions in the Cordilleras and Muslim Mindanao. In addition, local governments were given additional powers and responsibilities as venues for people’s participation and for local development. The fifth constitutional design area delves into how well these innovations have performed in terms of truly empowering local governments and enhancing their authority and autonomy in accordance with the 1987 Constitution.

In response to the excesses of the Marcos regime, the Constitution attempted to institutionalize a number of provisions on human rights. It also sought to address the problem of inequality, with protections of rights for specific vulnerable sectors and sections that mandate the state to provide certain services in the name of ‘social justice’. The sixth design area covered by the performance assessment examines the following rights provisions enshrined in the Constitution:

1. Human rights institutions. The Commission on Human Rights of the Philippines (CHR) and the Regional Human Rights Commission Charter for the Autonomous Region in Muslim Mindanao (ARMM) (now the Bangsamoro Autonomous Region in Muslim Mindanao (BARMM)) were created. These institutions are tasked with regularly recording cases of extrajudicial killings, enforced disappearances, torture and other human rights issues specifically pertaining to the right to life.

2. Right to privacy of communication and correspondence. Article III § 3 of the Constitution pertains to privacy of communication; Republic Act 10173 (or the Data Privacy Act of 2012) more broadly pertains to the use of citizens’ personal information and invokes the right of privacy and communication in its declaration of policy.

3. Right to information on matters of public concern. A law on freedom of information is yet to be passed; however, freedom of information policies were enacted by the executive branch, as well as in some local governments.

4. Freedom of association. This pertains to the right of citizens to form labour and people’s organizations.

5. Access to justice (courts, quasi-judicial bodies and adequate legal assistance). The Public Attorney’s Office (PAO) is mandated to render, free of charge, legal representation, assistance and counselling to indigent persons in criminal, civil, labour, administrative and other quasi-judicial cases.

6. Freedom from arbitrary detention. This stipulates that no person shall be detained solely by reason of her or his political beliefs and aspirations.

7. Right to housing. This pertains largely to urban land reform and public housing.

8. Right to healthcare. This ensures the availability and accessibility of medicines, the establishment of the Philippine Health Insurance Corporation (PhilHealth) and the enactment of the Magna Carta for Disabled Persons of 1992 (RA 7277) and the Universal Health Care Act of 2019 (RA 11223).

9. Women’s rights. This provision paved the way for several landmark laws passed since the 1990s, making rape a crime against persons, punishing sexual harassment and domestic violence and, in other ways, promoting the gender-responsive implementation of the Constitution, including the Magna Carta of Women of 2009 (RA 9710), the provision of the gender and development budget, and the Safe Spaces Act of 2019 (RA 11313).



10. Right to land. This ensures the right of farmers to own the land they till.

Through promulgation of the 1987 Constitution, and the institutional reforms it included, the Philippines undertook re-democratization through protection and assertion of civilian supremacy and control over the armed forces. The seventh design area covered in this assessment examines the performance of the Constitution in ensuring democratic governance and accountability of the security sector, as well as the extent to which the Constitution guides the relations of the security sector with the broader state and society. The security sector is defined for the purposes of the assessment as including the core security actors or uniformed services, such as the military, the police, and intelligence and paramilitary organizations. In particular, the Philippine security sector for this report comprises the Armed Forces of the Philippines, the Philippine National Police (PNP), the National Intelligence Coordinating Agency, the Philippine Coast Guard and paramilitary organizations such as the Citizen Armed Force Geographical Unit.

The eighth constitutional design area assessed examines how well the economic provisions in the Constitution have been realized. This includes examining whether or not a system of wealth redistribution, balanced with reasonable protection of the right to property, as envisaged in the 1987 Constitution, was implemented through required institutions and legislation. In the case of the Philippines, years of protracted insurgency as a result of labour and agrarian unrest provided an impetus for constitutionalizing labour justice and agrarian reform as explicit state policies. Reactions to centuries of foreign rule, on the other hand, explain why the 1987 Constitution is restrictive on many economic provisions and imposes citizenship qualifications for ownership of land and public utilities and of the right to exploit the country’s natural resources. Assessment of this institutional arena then proceeds by examining how the Constitution’s economic provisions have facilitated democratization by widening access to economic opportunities.

Finally, the ninth area of constitutional design assessed deals with the Constitution’s provisions on citizenship and its implications for equality. From a legal point of view, to be a citizen is to be recognized by a state as one of its subjects, whether native (i.e. natural-born) or naturalized (i.e. following a legal process of acquiring citizenship). However, this legalistic conception of citizenship may not be able to fully capture the realities faced by citizens. Therefore, being a citizen and citizenship can be viewed more expansively—that is, how citizens and being a citizen promote democracy, social justice and human rights; how decentralization as a framework of governance further expanded the notion of citizenship; and how citizens are able to take advantage of economic, and even political, opportunities to their benefit.



4. Key findings of the constitutional performance assessment

This section presents a summary of the key findings in each of the constitutional design areas enumerated in the previous section, based on the extensive background papers prepared by the project team members for the different areas. Each constitutional design area was assessed in accordance with the methodology developed by International IDEA, with some modifications to fit the Philippine case specifically, beginning with reference to the internal and external criteria identified and followed by an evaluation of the ‘thin’ and ‘thick’ compliance of the design areas with these criteria.

Performance of electoral processes and institutions

One of the internal criteria of the 1987 Philippine Constitution was the re-establishment of representative democracy following the martial law period under Marcos. As such, this part of the assessment looks at whether or not the Constitution’s goal of promoting regular, contested and inclusive elections has been met. The assessment then looked at thicker compliance with the Constitution in this design area, related to the external criteria of democratization, decentralization, social justice and human rights, peace and conflict resolution, and economic development.

To promote regular and peaceful transfers of power, the Constitution set a timeline for regular elections to the national government. In terms of thin compliance with the Constitution, elections have largely been held on time since the ratification of the 1987 Constitution. Elections for President, Vice-President and Congress have regularly been held on the second Monday of May, as called for. Party-list elections have been held to fill seats for sectoral representatives since the election of 11 May 1998, following the passage of the Party-List System Act. Declarations of failures of elections have also steadily decreased from 1988, when failures were declared for entire provinces, to the most recent election in 2019, when no failures of elections were declared. The dates for barangay and Sangguniang Kabataan (SK, youth council) elections have been altered several times, although these are not set by the Constitution. The regularity of elections has allowed for peaceful transitions of power to legitimate representatives, demonstrating thin and thick compliance with provisions on the time and manner of elections (article VI § 8; article VII § 4) that promote broader trends of democratization.

The Constitution also sought to provide for greater inclusivity (Dahl 1971) in elections, particularly related to voter enfranchisement. The average voter turnout in the Philippines has been approximately 72 per cent since 2001, with no notable differences among the



national, midterm and barangay elections. This is high compared with the turnout in established democracies, which is in line with the Constitution’s goal of promoting inclusive elections.

However, article V § 2 of the Constitution states that ‘The Congress shall also design a procedure for the disabled and the illiterates to vote without the assistance of other persons. Until then, they shall be allowed to vote under existing laws and such rules as the Commission on Elections may promulgate to protect the secrecy of the ballot.’ No law instituting such a procedure has been enacted. However, assistance for illiterate persons and persons with disabilities with casting their ballots is mandated by the Omnibus Election Code. Nonetheless, there is neither thin nor thick compliance with this constitutional provision for ensuring the inclusion of persons with disabilities and illiterate persons, limiting the full inclusivity of elections.

The 1987 Constitution was also designed to promote greater inclusivity and fairness in elections by limiting the influence of political dynasties, loosely defined as families that occupy multiple electoral positions simultaneously and/or persistently over time. Although the Constitution, in article II § 26, seeks to prohibit political dynasties, a law has yet to be passed to enact this provision or to even legally define what political dynasties are, demonstrating that there is not even thin compliance with the Constitution on this issue.

The Sangguniang Kabataan Reform Act of 2015 includes as a qualification for an SK official, whether elected or appointed, that they ‘must not be related within the second civil degree of consanguinity or affinity to any incumbent elected national official or to any incumbent elected regional, provincial, city, municipal, or barangay official, in the locality where he or she seeks to be elected’. Although this provision covers only SK officials, if an evaluation of the SK Reform Act reveals that the prevalence of dynastic candidates has been reduced, this wording may also be applied in formulating a more encompassing anti-dynasty law in the future.

The SK notwithstanding, the problem of dynasties persists. Mendoza et al. (2012) found that 70 per cent of district representatives in the 15th Congress (2010–2013) belonged to a political dynasty, the persistence of which has been found to coincide with lower standards of living and lower legislative productivity. Querubin (2016) also found that the three-term limit that the 1987 Constitution introduced for local government officials and members of the House of Representatives failed to reduce the probability that a family member will occupy the seat of a term-limited member of Congress, mayor or governor. In addition, dynasties have also been found to be prevalent among party-list representatives, with about 19 out of 61 party-list seats (Tomacruz 2019; Gavilan 2019) filled by representatives with relatives currently or previously in government.

With respect to the party-list system in general, although the first party-list elections were successfully held in 1998 following the passage of the Party-List System Act of 1995, five different electoral formulas have been used for the party-list system (Kimura 2013), all of which have also been found to yield significant disproportionalities between votes garnered and seats obtained (Teehankee 2019). Therefore, there is only thin compliance with the provisions on the party-list system (article VI § 5[1–2]).

In line with the 1987 Constitution’s goal of restoring competitive elections, article IX[C] §§ 6 and 10 of the 1987 Constitution states that:

A free and open party system shall be allowed to evolve according to the free choice of the people . . . Bona fide candidates for any public office shall be free from any form of harassment and discrimination.



With respect to competitiveness, there is reasonable ex ante uncertainty in the results of elections, with opposition candidates winning in three out of the five presidential elections under the 1987 Constitution. However, a disturbing trend of harassing the political opposition remains, particularly in the periods 2004–2010 and 2016–2019 prior to the election period fixed by article IX[C] § 9 (Freedom House 2019). Vote buying also remains prevalent (Canare et al. 2018), undermining true competitiveness. Therefore, there is only thin compliance with article IX[C] §§ 6 and 10. In addition, the goal of ensuring that bribes are not used during elections under the external criterion of economic development was not met.

The Philippines can procedurally be considered a representative democracy, demonstrating progress towards the internal criteria of the 1987 Constitution, although elections are not as competitive as envisaged in the 1987 Constitution, inhibiting thick compliance with the goal of deepening democracy. In terms of the other external criteria applied in the performance assessment, the following findings stood out. On decentralization, local elections, except at the barangay level, are conducted regularly, furthering decentralization, although a noticeable proportion of local seats (13 per cent in 2019) were contested by only one candidate (Go 2019), which suggests that elections are not competitive in these areas. In terms of social justice, vulnerable communities, such as illiterate persons, persons with disabilities, persons deprived of liberty and indigenous peoples, receive special assistance to facilitate voting on election day, but not to the extent mandated by article V § 2 of the 1987 Constitution. In terms of peace and conflict resolution, elections have become more peaceful, with 2019 reporting the fewest failures of elections and election-related violence cases, although violence against elected officials continues to be perpetrated, even outside election season. Lastly, in terms of economic development, economic disparities significantly impact on candidacy because of the dominance of political dynasties, as well as on voting behaviour because of the prevalence of vote buying. Overall, although electoral procedures set up by the 1987 Constitution have operated regularly since its ratification, there remains room for improvement in terms of ensuring that elections are competitive and inclusive.

To strengthen the performance of electoral institutions and processes in the country, the following recommendations for constitutional reform are made, based on the analysis conducted for this assessment:

1. Although local elections have been held regularly, barangay elections are frequently delayed by acts of Congress inhibiting performance in accordance with the external criterion of decentralization. Institutionalizing the schedule of barangay and local elections in the Constitution could inoculate them from congressional interference.

2. The political opposition has experienced harassment by the national government under multiple administrations under the 1987 Constitution. Although this problem cannot be solved through institutional design alone, a statement of the rights of the political opposition in the Constitution could serve as an additional protection for competitiveness in elections. In addition, a clear articulation of the role of the political opposition (Nussenberger et al. 2010) could be added to article IX[C] § 10 towards realization of more competitive elections.

3. The party-list provision should be abolished in the Constitution and, instead, a multi- member representation of Congress should be established in which a certain percentage is reserved for those running under a better-designed proportional representation system.

4. Considering the inability of Congress to pass a law defining political dynasties, as mandated by article II § 26 of the 1987 Constitution, such a definition may need to be added as an amendment to this provision so that it can be enforced. The definition



of a dynastic candidate provided in the SK Reform Act of 2015 could be adopted, subject to a review of the effectiveness of the law in reducing the prevalence of dynastic candidates.

In the area of legislation, the following recommendations resulted from the performance assessment:

1. Although reviews of the electoral provisions in the Magna Carta for Disabled Persons have found that there is a need to improve the implementation of non-geographic special voting precincts for persons with disabilities and senior citizens, it remains beneficial that the provision of these special precincts is legally mandated. Special precincts for other sectors with special needs and traditionally low voter turnout should also be institutionalized beyond their respective COMELEC resolutions.

2. The prevalence of uncontested local elections may also be addressed by a party system reform law that provides state funding for political parties, thereby allowing them to be an alternative to political dynasties as a source of recruitment to public office.

Assessment of legislative–executive relations

The assessment of legislative–executive relations indicates that the Constitution provided institutional mechanisms to ensure the separation of powers and checks and balances in line with the internal criteria identified, but some of these design features have not necessarily yielded optimal results. There is thin compliance with the Constitution in terms of establishing the institutions that support its internal goals of reinstating the separation of powers and checks and balances that have brought back democratic institutions to the country post Marcos. However, weak political parties, unintended consequences of institutional design, pork-barrel politics and other informal practices have also shaped legislative–executive relations negatively, undermining the realization of a stronger legislative branch vis-à-vis the executive.

The overall goal to de-Marcosify the country’s political system through the Constitution has resulted in bringing back and enhancing the separation of powers that was present in the pre-Marcos charter (1935 Constitution). The republican idea that no one branch should be more powerful than the other was strong in response to Marcos, who exercised legislative powers and closed Congress.

But even as Congress legislates, the President can certify a bill as urgent and can legally call Congress for a special session. According to Panao (2014: 64), one in five bills has been certified by the President as urgent. Over the years, this has been used by the executive to hasten the enactment of urgent bills, especially in times of crisis situations when there is heightened public clamour for a law that can address them. Moreover, Congress, voting separately, can override the presidential veto by a two-thirds vote. Since 1987, Congress has not exercised this power (Kasuya 2009) because legislators are usually aligned with the President’s coalition.

Although Congress scrutinizes the budget, it is the President who can disburse the budget and initiate a line-item veto, making her or him very powerful (Chua and Coronel 2003: 46). The Constitution also disallows Congress from adding to the budget submitted by the President; it can only realign allocation.

Checks and balances between the two branches are established through the power given by the Constitution in article XI to impeach a sitting President in the House of Representatives, with the Senate acting as the court where the chief executive is tried. The Constitution also makes explicit the congressional power of investigation in aid of legislation. This task is



necessary to perform legislative oversight of the executive. The President also has appointive powers, which pass through the Commission on Appointments, a bicameral body. Although there have been rejections in the past, the Commission on Appointments normally approves presidential appointees, except in some controversial cases. This has affected careerism in the bureaucracy.

The above-mentioned institutional design, coupled with the lack of mature political parties that exist in modern democracies, has been attributed to the rise of a strong executive in the Philippines. Because parties are active only during electoral periods, coalitions are usually established by the one-term President once he or she assumes power. Relatedly, coalitions are formed through pork-barrel politics. In post-EDSA legislative politics, this is an important tool used by Presidents to wield power over Congress. Because the President facilitates the budget release, he or she is able to wield power over the realization of projects earmarked by legislators. Moreover, the party-list system law that has been established under a presidential system has allowed the rise of parties run by politicians, some of which support or are also co-opted by the President’s coalition in the House of Representatives.

During committee hearings, cabinet members or their representatives are key resource persons who respond to legislators’ queries over technical provisions contained in legislative bills. During plenary deliberations, key executive officials are present to assist the particular legislator sponsoring the measure on the floor. This situation is particularly ubiquitous during budget deliberations. Because government agencies have the necessary data that can justify the budget allocation, their technical support lends much assistance to legislators in charge of defending their budget on the floor.

There are also transparency and accountability deficits in governance in the Philippines that warrant a serious review of processes. The rules of both the Senate and the House enable access to the public to committee hearings and plenary deliberations; however, there are limits to this—caucuses and executive sessions are not open to the public. Overall, access and transparency mechanisms need to be put in place so that Congress is perceived as inclusive and participatory.

This assessment indicates that the Constitution provided institutional mechanisms to promote the separation of powers and effective oversight on the exercise of executive power, but some of these mechanisms have not necessarily yielded optimal results. The following revisions and amendments to the Constitution are recommended to help address some of the issues raised in this assessment:

1. The party-list provision in the Constitution should be abolished and, instead, a multi- member representation of Congress should be established in which a certain percentage is reserved for those running under a better-designed proportional representation system.

2. The Commission on Appointments should be considered not a separate entity from the House of Representatives and the Senate but an ad hoc bicameral body to reduce expenditure. The Commission on Appointments could be made a more transparent body that allows for scrutiny of presidential appointees.

3. The appointive powers of the President should be limited to at least undersecretary level to enhance careerism in the bureaucracy. This would limit the ability of the chief executive to appoint so many executive officials and, therefore, prevent patronage and the consolidation of too much power in one branch of government.



As indicated in the findings of this assessment, the lack of disciplined political parties and the presence of political dynasties provide the President with much leeway in co-opting Congress; therefore, the following legislative remedies could be enacted:

1. A political party reform law could be passed that incorporates a campaign finance reform, a definition for turncoatism and the institution of party platforms. Having these policies could help ensure party discipline and therefore prevent the dependence of legislators on pork-barrel politics for re-election.

2. The party-list system law could be abolished.

In view of the findings suggesting that congressional proceedings lack transparency and are reliant on the executive for technical support for legislation, the following interventions are recommended:

1. Budgetary support should be provided to make the proceedings of both Houses of Congress more transparent. These include proceedings in bicameral meetings, the Commission on Appointments, and the Legislative-Executive Development Advisory Committee (LEDAC).

2. The bureaucracy of the Senate and the House of Representatives should be strengthened and professionalized by establishing a legislative career system.

3. Specific and clear rules on the bicameral conference committee should be established to ensure transparency and proper documentation of proceedings.

The performance of the judiciary

In the post-1946 and Marcos periods, ‘political patronage and interference threatened, and in the latter period actually overrode the independence of the judiciary’ (Atienza and Baylon 2006: 355). When Ferdinand Marcos was overthrown in 1986 by people power, the pursuit of a strong and independent judiciary began again. The 1987 Constitution considers the judiciary as an equal branch of government and contains innovative provisions that are aimed at enhancing the independence of the judiciary, especially the Supreme Court (article VIII).

To assess the judiciary using the internal criteria of strengthening the judiciary and its independence as a check to the two other branches of government, it is important to examine whether or not courts have been formed and, if they are operating, the manner in which judges and justices are selected and if this conforms with the Constitution, and whether or not reforms in the judiciary instituted in the Constitution have been implemented. It was found that there is thin compliance in all of these areas, but not thick compliance, particularly in terms of whether or not the judiciary has the power to ensure the implementation of the Constitution in line with its intent and the rule of law.

The courts called for by the 1987 Constitution have been formed and they generally attempt to operate according to the Constitution, therefore demonstrating thin compliance. The regular courts in the integrated judicial system, together with the special courts and quasi-courts, comprise what is called the total Philippine court system. In selecting and appointing justices and judges, the JBC is tasked with overseeing and facilitating this function and it has been observed to follow the minimum requirements stated in the Constitution. Members of the judiciary who participated in the FGDs, however, note that, in reality, the JBC is not completely immune from political influence. Because of this, some members of the judiciary find the qualifications of some shortlisted or appointed members of



the Supreme Court and other courts questionable. In terms of the general reforms introduced in the 1987 Constitution, these are already formally instituted although there are problems in enforcement; therefore, there is only thin compliance. Substantial fiscal autonomy is still lacking and, despite the constitutional powers of the Supreme Court in terms of judicial review to check on possible excesses of the two other branches, it has exercised such power a few times, but it became the subject of retaliation from the two other branches, which will be explained further in examining the external criterion on democratization, particularly in relation to the question of the independence of the judiciary.

As far as the external criteria are concerned, in terms of the judiciary’s performance in relation to democratization, the assessment examined the independence and competence of the judiciary; its role as an independent arbiter in intragovernmental conflicts; the fair representation of the Philippine population in the judiciary corps; the courts’ competence, effectiveness and accessibility; and the accountability mechanisms put in place. The assessment showed that there is only thin compliance in most of these areas.

Ideally, the perception is that judges interpret the law in an independent and impartial manner. However, the judiciary is also a political institution. Judicial independence is hampered by the fact that judges and justices are political appointees and are therefore perceived to be indebted to the members of the executive branch, according to members of the judiciary who participated in the FGDs. In terms of being an independent arbiter in intragovernmental conflicts, if cases are filed in the Supreme Court, the Court acts on them and interprets the applicable constitutional provision or law. Since 1987, the Supreme Court has made use of its power of judicial review with regard to actions of the executive and legislative branches. However, by exercising such power, it has become the target of both branches of government. The impeachment and conviction of Chief Justice Renato Corona by the Philippine Congress and the removal by the Supreme Court itself of Chief Justice Maria Lourdes Sereno because of a quo warranto petition by the Solicitor General has had a chilling effect on the members of the judiciary, as well as the legal profession. The lack of respect on the part of legislators and some members of the executive branch, including the current President, making the judiciary somewhat ‘subordinate to other branches of government’ and losing its ‘moral ascendancy’ (Gatmaytan 2017: 205), also weakens the perception of an independent judiciary.

Philippine courts are facing difficult conditions that affect their competence and effectiveness. The societal sources of delays, court system delays, delays caused by court- related agencies, judge-caused delays and lawyer-caused delays are some of the problems mentioned by members of the judiciary, prosecutors and other lawyers who participated in FGDs for this assessment, as well as reported in other literature (Atienza and Baylon 2006: 369–71). Although courts are supposed to be accessible for all, and there are efforts to make them more accessible, people from lower socio-economic classes are significantly disadvantaged because of various fees and costs and lack of education and awareness on the law and judicial procedures. Those with disabilities also face difficulties with the lack of in- house facilities and translators to assist them. This inhibits thick compliance with the larger aim of greater access, representation and democratization.

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